Nursing Home Sexual Assault

Sexual abuse in nursing homes is a vastly underreported but very real problem in Florida and throughout the U.S. The Miami Herald reported federal regulators have catalogued more than 20,000 complaints of sexual abuse at long-term care facilities over 20 years – a rate of nearly three complaints a day. Disturbing as this figure is, the reality is even worse because it fails to consider cases in which one resident sexually assaults another.

At The Ansara Law Firm, our Fort Lauderdale sexual assault attorneys work aggressively to hold both perpetrators and negligent nursing homes liable for sexual assault suffered by vulnerable residents.

Nursing homes have a duty of care to protect their residents from an unreasonable risk of danger – and that includes sexual assault and battery. Failure to do so may result in arrests and criminal prosecution of the offender, and potentially criminal action against nursing home administrators for failing to act. However, these cases can be very difficult to prove, and criminal courts have a high proof burden (beyond a reasonable doubt). Civil litigation is another avenue for justice, with a lesser proof burden (a preponderance of the evidence), as well as a broader range of actions against third parties (i.e., the nursing home) for actions that may be negligent, but not necessarily criminal. Nursing homes can also be held vicariously liable for the criminal or wrongful actions of employees acting in the course and scope of employment.

Elder sexual abuse is initiation of unwanted or non-consensual physical or sexual contact with an elderly person. It should be noted that Florida’s sexual battery statute, F.S. 794.011, indicates consent cannot be given by someone who is:

• Mentally defective, meaning they have a mental disease or defect rendering the person temporarily or permanently incapable of appraising the nature of his or her conduct (often applies in cases where victim has dementia, Alzheimer’s or some similar condition);
• Mentally incapacitated, meaning temporarily incapable of appraising or controlling one’s own conduct due to the influence of a narcotic, anesthetic or intoxicating substance, regardless of whether that is admitted with or without their consent (applies in cases where patient may be on anti-psychotic medications or other drugs);
• Physically helpless, meaning unconscious, asleep or for any other reason physically unable to communicate unwillingness to act;
• Physically incapacitated, meaning bodily impaired or handicapped or substantially limited in ability to resist or flee.

Sexual abuse in a nursing home setting can occur either at the hands of a caregiver, but also by other residents. These are felony crimes that are actionable under criminal laws. Unfortunately, nursing homes have a reputation for failing to promptly investigate, report and address these problems.

Florida’s nursing home bill of rights entitles patients with the right to be free of mental and physical abuse, corporal punishment and physical and mental abuse. This is a legal duty of care.

There are several different legal theories by which nursing homes can be liable for sexual abuse of residents.

These include:

• Vicarious liability. This is thanks to a legal doctrine called respondeat superior, which is Latin for “let the master answer.” If an employee commits acts within the course and scope of employment, the nursing home can be vicariously liable. It is generally easy to invoke this legal doctrine because nursing homes owe patients a very high duty of care.
• Negligence . To prove negligence, one must show the nursing home owed a duty of care, breached that duty, the breach caused plaintiff harm and the plaintiff suffered damages as a result. Given that nursing homes owe residents a high duty of care, conduct by employees that falls short of that duty can result in the nursing home being liable. Common negligence actions against nursing homes in these cases include negligent hiring, retention and supervision of employees, negligent maintenance of the premises, negligent care and inadequate security.
• Breach of contract. Nursing home residents enter a contract with the nursing home when they are admitted, outlining the services the nursing home will provide. Abuse of any kind is probably going to run counter to the promises made in that contract, which means nursing home residents can pursue legal action against the nursing home for breach of contract.

These actions can be taken simultaneous to criminal prosecution and regulatory action for non-compliance with state and federal standards.

Contact The Ansara Law Firm for more information about pursuing a civil claim for damages after nursing home sexual assault or abuse. Call us at (954) 761-3641 for a free case review.